(5) Petition for a Physician Which Is Supported by Individual Labor Certification.
Section 212(a)(5)(B) excludes alien physicians who are coming to the United States principally to perform services as a member of the medical profession unless they have passed parts I and II of the National Board of Medical Examiners Examination (NBME exam) or an equivalent exam as determined by the Secretary of Health and Human Services and they are competent in written and oral English. However, this exclusion ground only applies to alien physicians seeking admission as an alien classified under section 203(b)(2) or section 203(b)(3) of the Act. In addition, the definition of "graduates of a medical school" in section 101(a)(41) excepts aliens who are of national or international renown in the field of medicine. Therefore, if a physician qualifies under section 203(b)(1) as an alien of extraordinary ability or an outstanding professor or researcher, passage of the NBME exam is not necessary.
Physicians who are immigrating under sections 203(b)(2) or 203(b)(3) are required to pass the NBME exam. However, the DOL regulations require passage of the exam to obtain a labor certification. Therefore, if the alien has an individual labor certification, he has already demonstrated compliance with this requirement to the DOL and does not have to submit evidence of it with the I-140.
That leaves the physician immigrating under section 203(b)(2) who is requesting a waiver of the job offer requirement in the national interest. Such an alien does not have an individual labor certification and, therefore, must submit evidence of passage of the examination with the I-140. Remember, this only applies if the physician will be involved in patient care.
Researchers, teachers, etc. are not subject to this requirement. In addition, the exclusion ground does not apply if the alien was fully and permanently licensed to practice medicine in a State of the U.S. on January 9, 1978, and was practicing medicine in a State of the U.S. on that date.
